` NDfiX V0.
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`57292/20;
`INDEX NO. 57292/2016
`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
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`FILED: WESTCHESTER COUNTY CLERK 09m2018 04:30 P l
`09/24/20;
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`NYSC 3F DOC. NO.
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`VYSCEF:
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`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`EXHIBIT A
`EXHIBIT A
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`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
`
`INDEX NO. 57292/2016
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`---------------------------------------------------------------------X
`REBECCA SUNSHINE,
`
`Plaintiff,
`
`Index No.: 57292/2016
`
`- against -
`
`JACK BERGER, M.D., ARIS COMNINELLIS, M.D.,
`CHRISTOPHER MATTERN, M.D., STEPHEN
`ANDRUS, M.D. and WESTMED MEDICAL GROUP,
`
`Defendants.
`---------------------------------------------------------------------X
`
`EXPERT AFFIRMATION
`(INTERNAL MEDICINE)
`
`STEVEN C. MARTIN, M.D., a physician duly licensed to practice medicine in
`
`the State of New York, affirms, under penalty of perjury, that the following facts are true:
`
`1.
`
`I am a physician duly licensed to practice medicine in the State of New
`
`York. I graduated from Columbia University Medical School in 1982. From 1982-1986, I
`
`completed training at the University of Michigan Hospitals. This included an internship and
`
`residency in internal medicine. From 1986-1988, I did a fellowship in internal medicine at the
`
`University of Pennsylvania.
`
`I am Board certified in internal medicine. I currently specialize in
`
`internal medicine in the New York metropolitan area. I am fully familiar with the standards of
`
`care in the field of internal medicine that existed in New York and nationally at the time of the
`
`treatment at issue, including the appropriate management of patients with back, hip and leg pain.
`
`I have years of experience seeing and treating patients with a variety of complaints, including
`
`pain in a specific area of the body.
`
`2.
`
`I am not a party to this litigation. This affirmation is submitted in support
`
`of the motion for summary judgment on behalf of the defendants. My opinions are based on my
`
`review of the pleadings, the pertinent medical records, and the testimonial evidence in this
`
`1916874.1
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`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
`
`INDEX NO. 57292/2016
`
`action. All of my opinions in this affirmation are made to a reasonable degree of medical
`
`certainty.
`
`3.
`
`Based on my review of this case, my familiarity with the standards of
`
`practice in the medical community, my training and years of experience treating patients with
`
`back and hip pain, and specializing in the field of internal medicine, it is my opinion to a
`
`reasonable degree of medical certainty that the care provided by Dr. Comninellis was at all times
`
`consistent with the standard of care. It is also my opinion that no act or omission by Dr.
`
`Comninellis caused or contributed to the damages in this case.
`
`4.
`
`Dr. Comninellis is an internist who first became involved in Mrs.
`
`Sunshine’s care when she rendered a preoperative evaluation for an unrelated gynecological
`
`procedure on January 10, 2014. During the visit, Mrs. Sunshine made complaints of back and
`
`leg pain. Mrs. Sunshine had one follow up visit with Dr. Comninellis to address these
`
`complaints on January 14, 2015. Dr. Comninellis provided appropriate care to this patient.
`
`When this patient presented with complaints of pain in the back and hip, Dr. Comninellis
`
`prescribed appropriate medication and advised the patient to follow up within the week if her
`
`complaints of pain persisted. In fact, Mrs. Sunshine returned four days later with continued
`
`complaints of pain. Dr. Comninellis appropriately ordered x-rays, which were reported as
`
`normal by the radiologist. When the x-rays were normal, Dr. Comninellis appropriately referred
`
`this patient to an orthopedic specialist. Dr. Comninellis did not see Mrs. Sunshine for these
`
`complaints during the time period at issue after this. Her efforts to treat this patient’s complaints
`
`of back and leg pain, as an internist, were timely and appropriate. Dr. Comninellis properly
`
`referred Mrs. Sunshine to a specialist when it was warranted. After she referred the patient to a
`
`specialist, as will be explained below, Dr. Comninellis was entitled to rely on the specialists’
`
`1916874.1
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
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`evaluations and diagnoses of this patient, and did not have a duty to question their treatment of
`
`the patient.
`
`Allegations
`
`5.
`
`The allegations against Dr. Comninellis in this case are based on her
`
`treatment of Mrs. Sunshine from January 2014 through March 2014. However, there is no
`
`evidence that Dr. Comninellis saw Mrs. Sunshine in either February or March 2014. Mrs.
`
`Sunshine reached out to Dr. Comninellis via email in February 2014 about an unrelated medical
`
`issue. In March 2014, Mrs. Sunshine spoke with the patient via telephone on one occasion. The
`
`allegations of negligence against Dr. Comninellis are focused on the care she rendered to Mrs.
`
`Sunshine at WESTMED, which involves less than one week of care and two office visits.
`
`6.
`
`Based on my review of the pleadings in this case, the crux of plaintiff’s
`
`argument is that Dr. Comninellis failed to conduct a proper workup for plaintiff’s symptomology
`
`from January through March 2014 and failed to diagnose and treat an infection in plaintiff’s left
`
`hip. Plaintiff claims that there was a delay in diagnosing the infection and that the defendants
`
`negligently diagnosed her with rheumatoid arthritis instead of an infection. As a result, Mrs.
`
`Sunshine claims she needed a hip replacement.
`
`Relevant Facts
`
`7.
`
`On January 10th, Mrs. Sunshine saw internist Dr. Aris Comninellis for a
`
`preoperative visit for a gynecological procedure. The purpose of the visit was to medically clear
`
`Mrs. Sunshine for the gynecological surgery. However, at the visit, Mrs. Sunshine complained
`
`of lower back and leg pain for the past few days. Mrs. Sunshine indicated increased pain while
`
`lying down and left hip pain with active flexion sitting or laying flat. She reported seeing a
`
`chiropractor and being an avid runner. Her vital signs were normal at this visit. Dr.
`
`1916874.1
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
`
`Comninellis did a thorough physical examination and found mild tenderness in the left sacroiliac
`
`joint and pain in the left thigh when she flexed her hip in lying or sitting position. Dr.
`
`Comninellis prescribed Mobic, a non-steroidal anti-inflammatory medication (NSAID), for one
`
`week and recommended stretching the back, if tolerated. She was also instructed to call in one
`
`week if there was still pain in the back or leg. Bloodwork was ordered as part of the preoperative
`
`evaluation for the procedure (a loop electrosurgical excision) for a gynecological condition. The
`
`results of the bloodwork were normal, including the white blood count. Later that day, Dr.
`
`Comninellis communicated the results of this bloodwork to Mrs. Sunshine and advised Mrs.
`
`Sunshine to let her know if the back pain did not improve.
`
`8.
`
`Mrs. Sunshine presented to Urgent Care the following day, January 11th,
`
`and was seen by a non-party physician. She complained of left lower back pain that radiated to
`
`the leg for the last 3-4 days. The Mobic was not helping. On examination, she had pain in the
`
`left sciatic notch. The diagnosis was sciatica. Mrs. Sunshine requested stronger medication and
`
`a work note. She was prescribed Prednisone, a corticosteroid, and Skelaxin, a muscle relaxant.
`
`9.
`
`On January 13th, Mrs. Sunshine wrote to Dr. Comninellis indicating that
`
`she had gone for the Urgent Care visit and that she was prescribed a muscle relaxant which was
`
`helping. However, she still had pain and was having trouble walking. She said that she thought
`
`physical therapy might help.
`
`10.
`
`On January 14th, Mrs. Sunshine returned to Dr. Comninellis with
`
`continued complaints of hip and back pain. Dr. Comninellis did a physical examination and
`
`found slight tenderness in the lower lumbar spine, pain in the left hip with internal/external
`
`rotation and slight tenderness in the left groin area. Mrs. Sunshine was unable to ambulate due
`
`to pain in the left hip. Dr. Comninellis suspected primary hip inflammation and possible
`
`1916874.1
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
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`osteoarthritis. Mobic and Lortab (hydrocodone-acetaminophen) were prescribed. At this time,
`
`Dr. Comninellis felt that Mrs. Sunshine’s pain was either inflammatory and hip related or
`
`radicular, meaning it was coming from the spine. Dr. Comninellis also ordered x-rays of the hip
`
`and lumbar spine. Dr. Comninellis’ plan was to refer Mrs. Sunshine for an orthopedic consult if
`
`the x-rays were normal. The x-rays were done that same day and the radiologist’s findings were
`
`normal. Upon receipt of the normal x-ray results, Dr. Comninellis recommended an orthopedic
`
`consult and provided Mrs. Sunshine with a referral. Arrangements were made for Mrs. Sunshine
`
`to have an orthopedic consult with Dr. Christopher Mattern in two days. The purpose of the
`
`consult was to determine the cause of the pain Mrs. Sunshine was experiencing in her left hip, as
`
`well as the pain in her lumbar spine. This is the last time that Dr. Cominellis saw this patient
`
`during the time period at issue. However, Dr. Cominellis did speak with Mrs. Sunshine.
`
`11.
`
`On January 20th, Dr. Comninellis authorized Mrs. Sunshine’s request for
`
`a refill of Metaxalone (Skelaxin). She did not speak with Mrs. Sunshine.
`
`12.
`
`On February 3rd, Mrs. Sunshine emailed Dr. Comninellis with an
`
`unrelated medical question. Dr. Comninellis advised that this was not something to be
`
`concerned about and that she hoped Mrs. Sunshine was feeling better. Mrs. Sunshine replied, via
`
`email, saying she was “doing a little better but not great.”
`
`13.
`
`On March 26th, Dr. Comninellis communicated with Mrs. Sunshine via
`
`telephone and email. Mrs. Sunshine stated that she was going to be seeing Dr. Berger for a
`
`rheumatology consultation and wanted to be seen ASAP. Dr. Comninellis recommended repeat
`
`blood work to test Mrs. Sunshine’s hemoglobin level and a test to check for any blood in the
`
`stool for an unrelated condition. Within minutes of speaking with Mrs. Sunshine, Dr.
`
`Comninellis sent a message to Dr. Berger requesting he fit Mrs. Sunshine into his schedule. An
`
`1916874.1
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
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`hour after that, Dr. Berger’s nurse confirmed that an appointment had been scheduled. Results of
`
`the lab work ordered by Dr. Comninellis were not indicative of infection and the stool blood test
`
`was negative.
`
`Opinions
`
`14.
`
`It is my opinion to a reasonable degree of medical certainty that the care
`
`provided by Dr. Comninellis was at all times consistent with the standard of care. It is further
`
`my opinion that no act or omission by Dr. Comninellis caused or contributed to the alleged
`
`injuries in this case.
`
`15.
`
`The allegations against Dr. Comninellis are limited, as was her role in this
`
`patient’s care. It is my opinion that Dr. Comninellis’ handling of the January 10th visit was
`
`appropriate. On January 10th, Mrs. Sunshine complained of lower back and leg pain that began
`
`a few days prior. At this visit, Dr. Comninellis performed a thorough physical examination of
`
`Mrs. Sunshine, which included a physical examination of the back and leg. Dr. Comninellis
`
`documented her findings of tenderness in the left sacroiliac joint and pain in the left thigh. Mrs.
`
`Sunshine’s vitals were completely normal, including her temperature. Mrs. Sunshine did not
`
`make concerning complaints of a recent history of fever or chills, weight loss or malaise. For
`
`Mrs. Sunshine’s pain, Dr. Comninellis properly prescribed Mobic, which is a non-steroidal anti-
`
`inflammatory drug (NSAID). It was appropriate for her to prescribe this medication for
`
`suspected inflammation. She further instructed Mrs. Sunshine to call her within one week if she
`
`was still experiencing pain.
`
`16.
`
`Dr. Comninellis’ evaluation, work-up, and plan for follow-up treatment of
`
`Mrs. Sunshine on January 10th was entirely appropriate. This was the first time Mrs. Sunshine
`
`made complaints of pain to a doctor. It is fairly common for a patient to present to his/her
`
`1916874.1
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`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
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`internist with complaints of pain in an area of the body. Typically, when a patient sees his/her
`
`internist and makes complaints of pain in an area of the body, it is appropriate for the internist to
`
`perform a physical examination, prescribe some type of anti-pain or anti-inflammatory
`
`medication and instruct the patient to follow up if the pain persists. If the patient returns with
`
`persistent symptoms, despite the pain medication, it is then appropriate to perform a further work
`
`up of the patent’s symptoms or refer the patient to a specialist.
`
`17.
`
`There is absolutely no evidence that Mrs. Sunshine had any type of
`
`infection on January 10th. This is supported by the fact that Mrs. Sunshine’s vital signs were
`
`completely normal, including her temperature, as was her blood work including her white blood
`
`count. In addition, the patient did not have a history of recent fever or chills, fatigue or malaise.
`
`The standard of care did not require Dr. Comninellis to order further testing during this initial
`
`visit.
`
`18.
`
`Dr. Comninellis’ prescription of Mobic was also appropriate. Mrs.
`
`Sunshine reported back and leg pain which began a few days prior. As an internist, the standard
`
`of care required Dr. Comninellis to treat this patient’s pain with some type of anti-inflammatory
`
`medication. This was the correct type of medication based on the suspected condition of
`
`inflammation. Dr. Comninellis’ plan for follow-up was also appropriate. She instructed the
`
`patient to follow up within one week, which was the standard of care.
`
`19.
`
`Four days later, Mrs. Sunshine returned to Dr. Comninellis. In my
`
`opinion, Dr. Comninellis’ handling of this visit was also appropriate and conscientious. The day
`
`prior to the visit, Mrs. Sunshine wrote to Dr. Comninellis stating that since the January 10th visit,
`
`she went to Urgent Care for her pain and was prescribed a muscle relaxant, which she thought
`
`was helping. However, when Mrs. Sunshine returned to Dr. Comninellis on January 14th, she
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`1916874.1
`
`

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`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
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`still had complaints of hip and back pain. Her vital signs were again normal, including her
`
`temperature.
`
`20.
`
`Since Mrs. Sunshine had continued complaints of pain, Dr. Comninellis
`
`again performed a thorough physical examination and ordered x-rays of the hip and lumbar spine
`
`for an additional evaluation of he cause of her pain. However, the results of these x-rays were
`
`reported by the radiologist as normal. As such, Dr. Comninellis determined it was then
`
`appropriate to refer Mrs. Sunshine to an orthopedic specialist who could further evaluate and
`
`assess Mrs. Sunshine’s complaints of pain, determine the cause and determine if surgery or more
`
`advanced medical treatment was needed.
`
`21.
`
`Dr. Comninellis treated Mrs. Sunshine during the January 14th visit in
`
`accordance with the standard of care. The patient had continued complaints of pain; however,
`
`her vitals were normal. It was appropriate for Dr. Comninellis to perform a physical
`
`examination and to order further testing, such as x-rays. If a patient’s complaints of pain persist
`
`or worsen, and the patient does not report improvement with pain medication, a further workup
`
`of the patient’s complaints is appropriate. As an internist, if a patient returns with continued
`
`complaints of pain, despite being treating with anti-inflammatory medication, the next steps for
`
`an internist would be to either immediately refer the patient to a specialist, or perform a further
`
`work-up of the patient and then refer te patient to the appropriate specialist. This is exactly what
`
`Dr. Comninellis did. She requested a further evaluation of Mrs. Sunshine by ordering x-rays.
`
`However, the x-rays were reported as normal and did not provide any further insight to her as to
`
`the cause of Mrs. Sunshine’s pain. Therefore, a more extensive work-up of Mrs. Sunshine’s
`
`complaints by a specialist was required. This is exactly what Dr. Comninellis did when she
`
`referred Mrs. Sunshine to an orthopedic specialist. As an internist, it was not Dr. Comninellis’
`
`1916874.1
`
`

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`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
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`INDEX NO. 57292/2016
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`duty to order any other type of testing, nor would it be within the scope of her practice to
`
`interpret additional testing and formulate a plan based on that testing without the input of a
`
`specialist. She appropriately referred Mrs. Sunshine to an orthopedic specialist, who has
`
`specialized expertise and training in the areas of back and leg pain.
`
`22.
`
`There is also no evidence that Mrs. Sunshine had an infection on January
`
`14th. Her vitals were normal and Mrs. Sunshine’s complaints were muscular in nature and
`
`limited to pain in the back and leg. Dr. Comninellis had no reason to suspect that Mrs.
`
`Sunshine’s complaints were related to an infection. Mrs. Sunshine did not have known risk
`
`factors for a joint infection.
`
`23.
`
`Once Dr. Comninellis referred Mrs. Sunshine to a specialist, she was no
`
`longer involved in treating or diagnosing this patient for that particular condition. Mrs. Sunshine
`
`was seen by a variety of specialty doctors, including an orthopedist, pain management specialist
`
`and eventually a rheumatologist. Because these providers were all associated with the same
`
`medical group, Dr. Comninellis was able to see Mrs. Sunshine’s records from these other visits.
`
`She also occasionally signed off on Mrs. Sunshine’s office visits with the specialty doctors.
`
`However, as an internist, Dr. Comninellis was staying apprised of the patient’s condition and the
`
`fact that she signed off on other providers’ notes does not mean had a duty to intervene or
`
`challenge the diagnoses of the other providers.
`
`24.
`
`I have reviewed the entirety of Mrs. Sunshine’s records from Westmed
`
`Medical Group. In my opinion as an internist, there were no diagnoses or plans of treatment
`
`rendered by the specialty doctors which were so egregiously incorrect, that would have required
`
`Dr. Comninellis to intervene. Dr. Comninellis appropriately relied on the specialty doctors to
`
`diagnose, evaluate and treat Mrs. Sunshine. In fact, the standard of care requires an internist to
`
`1916874.1
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 09/24/2018 04:30 PM
`NYSCEF DOC. NO. 50
`RECEIVED NYSCEF: 09/24/2018
`
`INDEX NO. 57292/2016
`
`rely
`
`on
`
`the
`
`diagnosis
`
`of
`
`a specialist,
`
`unless
`
`there
`
`was
`
`a diagnosis
`
`that
`
`is
`
`that
`
`an
`
`internist
`
`should
`
`have
`
`known
`
`was
`
`blatantly
`
`incorrect.
`
`However,
`
`there
`
`circumstances
`
`here
`
`which
`
`would
`
`have
`
`required
`
`Dr.
`
`Comninellis
`
`to
`
`question
`
`specialty
`
`doctor.
`
`Dr.
`
`Comninellis
`
`was
`
`not
`
`further
`
`involved
`
`in
`
`this
`
`patient's
`
`condition,
`
`nor
`
`did
`
`she
`
`have
`
`a duty
`
`to
`
`be
`
`involved
`
`or
`
`question
`
`the
`
`treatment
`
`by
`
`the
`
`specialists
`
`after
`
`she
`
`referred
`
`Mrs.
`
`Sunshine
`
`to
`
`a specialist
`
`on
`
`January
`
`25.
`
`Dr.
`
`Comninellis'
`
`care
`
`cannot
`
`be
`
`connected
`
`to Mrs.
`
`this
`
`case.
`
`There
`
`is no
`
`evidence
`
`that
`
`Mrs.
`
`Sunshine
`
`was
`
`suffering
`
`from
`
`an
`
`when
`
`was
`
`any
`
`time
`
`in
`
`January
`
`2014,
`
`she
`
`under
`
`the
`
`care
`
`of
`
`Dr.
`
`Comninellis.
`
`blood
`
`work
`
`and
`
`x-rays
`
`were
`
`normal.
`
`Additionally,
`
`the
`
`negative
`
`cultures
`
`hip
`
`aspiration
`
`show
`
`that
`
`there
`
`was
`
`no
`
`infection
`
`in
`
`January.
`
`Therefore,
`
`there
`
`Dr.
`
`Comninellis
`
`caused
`
`the
`
`injuries
`
`in
`
`this
`
`case.
`
`26.
`
`In
`
`conclusion,
`
`it
`
`is my opinion
`
`to
`
`a reasonable
`
`degree
`
`that
`
`Dr.
`
`Comninellis'
`
`treatment
`
`of Mrs.
`
`Sunshine
`
`was
`
`at
`
`all
`
`times
`
`appropriate
`
`that
`
`Dr.
`
`Comninellis
`
`did
`
`or
`
`did
`
`not
`
`do
`
`caused
`
`or
`
`contributed
`
`to
`
`the
`
`injuries
`
`Therefore,
`
`the
`
`allegations
`
`against
`
`Dr.
`
`Comninellis
`
`and
`
`her
`
`employer
`
`should
`
`Dated:
`
`sJa2
`
`/ d,
`
`New York
`
`September
`
`20,
`
`2018
`
`